Summary: The Ombudsman will not investigate this complaint that a footpath outside the complainant’s property has not been laid properly. The alleged fault has not caused the complainant a significant injustice, and he can seek a remedy in court.

The complaint

1. The complainant, whom I refer to as Mr B, pruned a hedge along his front boundary and discovered the adjacent public footpath had only been laid up to the edge of the previously overgrown hedge branches. Mr B says the path should have gone under the hedge and up to his boundary. He thinks the Council should extend the path, as the redundant strip of land looks unsightly, and he says the kerb along the edge of the path could pose a trip hazard.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

3. And the law also says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

Back to top

How I considered this complaint

4. I have considered:
• Mr B’s complaint to the Ombudsman;
• The complaint correspondence between Mr B and the Council;
• A photograph of the footpath.
5. I also gave Mr B the opportunity to comment on a draft version of this statement.

Back to top

What I found

6. The Council has explained to Mr B that the footpath was laid over 5 years, so it cannot now identify the reasons for the works being completed in this manner. The Council has also visited the site. It concluded pedestrians were unlikely to be walking close to the hedge due to the width of the footway, and the minimal uplift of the edging kerb did not pose a risk to highway users. Although the layout may not be aesthetically pleasing, the Council decided to take no further action.

Assessment

7. I appreciate Mr B might not like the appearance of the footway in front of his property. But, having looked at a photograph of it, I am not persuaded the extent of the injustice or harm to Mr B is so significant as to warrant the Ombudsman investigating the alleged fault. With reference to paragraph 2 above, I therefore do not consider the Ombudsman should pursue the matter further.
8. In addition, Section 56 of the Highways Act 1980 says a person may serve a notice on the Council to carry out repairs. Should it fail to do so, the complainant may then apply to the magistrates’ court for an order requiring the Council to take action.
9. So, if Mr B considers the Council is not keeping the road in repair, he has the right to take his complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
10. I consider it would be reasonable for Mr B to serve a notice on the Council and take his complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

Back to top

Final decision

11. The Ombudsman will not investigate Mr B’s complaint. This is because the injustice arising from the alleged fault is not significant enough to justify our involvement, and Mr B can seek a remedy in court.

Back to top

Investigator's decision on behalf of the Ombudsman